Whaley Estate Litigation Newsletter
 Whaley Estate Litigation Newsletter Vol.2 No. 11 February 2013

 

Greetings!   

  

HAPPY VALENTINE'S DAY!

 

Thank you for your continued feedback, comments, enquiries and contributions. Feel free to share with us at: 

 

 

Whaley Estate Litigation provides litigation, mediation and dispute resolution services to you or your clients in the following practice areas:

 

  • Will, Estate, Trust Challenges/Interpretations
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Hearings
  • End of Life Decision Making
  • Treatment Decision Disputes
  • Elder Law
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Counsel to Estate Trustee(s) and Estate Trustee(s) During Litigation and other Fiduciaries
  • Section 3 Counsel under the Substitute Decisions Act

Please Enjoy,
 

Kimberly A. Whaley
Whaley Estate Litigation

WEL NEWS

1. Canadian Bar Association, Mid-Winter 2013 Conference, Fredericton, NB

 

Kimberly Whaley and JaŽl Marques de Souza attended the Canadian Bar Association, Mid-Winter Conference in Fredericton, New Brunswick on February 7-9, 2013, and presented on: "Predatory Marriages: It's Consequences and Costs in Capacity Proceedings", as well as "Financial Abuse, Risks and Abuse of Power of Attorney Documents" and finally, "Decisional Capacity" with Dr. Patrick Feltmate. Due to the storms, we were snowed in with a longer stay than expected! 

 

Click to download the papers:

 

Predatory Marriages: It's Consequences and Costs in Capacity Proceedings (PDF, 41 pages)

 

Financial Abuse, Risks and Abuse of Power of Attorney Documents (PDF, 54 pages)  

  

2. Osgoode Professional  Development - Advising the Elderly  

 

Kimberly Whaley presented at the Osgoode Professional Development Conference on Advising the Elderly on February 11-12, 2013,  presenting her paper entitled, "Remarriages and Common Law Arrangements: Estate Claims by Spouses". 

A link to the paper can be accessed at:

 

3. Fraud Awareness Month, Ontario 

 

Patricia Fleischmann, Police Constable with the Vulnerable Persons Unit in Toronto, advised that February is "Fraud Awareness Month". You can follow posts on Twitter using the hashtag #FPM2013. Patricia Fleischmann also reports that Ontario is launching an action plan for seniors.

 

The importance of these initiatives affecting the older adult is understood when looking at statistics which, to mention but a few, include by 2017, for the first time, Ontario will be home to more people over 65 than children under 15.  The number of seniors in Ontario will be more than double by the year 2036. 

 

Click the following links to learn more:

  

Ontario Action Plan for Seniors    

  

Ontario Action Plan for Health Care    

  

Ontario Resources for Seniors    

  

Living Linger, Living Well - Dr. Samir Sinha, Provincial Lead, Ontario Seniors Strategy

 

4. LCO Initiatives

 

The Law Commission of Ontario held a conference on Friday, January 18, 2013 "Into the Future, Benefiting from the Past" to kick off their symposium to explore issues of Disability, Aging and Ontario's Capacity and Guardianship system. The Law Commission of Ontario recently released two important framework reports - a framework for the law as its affects older adults and a framework for the law as it affects persons with disabilities.

 

One of the next projects of the LCO is to approach reform as it relates to Ontario's capacity and guardianship laws.

 

Click to link to the Law Commission of Ontario website 

 

5. The Older Adult: A Report to the Minister

 

Dr. Samir K. Sinha, Geriatric, Mt. Sinai Hospital, and Provincial Lead, Ontario Seniors Strategy, produced a report entitled "Living Longer, Living Well, Highlights and Key Recommendations", from the report submitted to the Minister of Health and Long Term Care and the Minister responsible for seniors on recommendations to inform a senior strategy for Ontario. 

 

A link to the recommendations can be accessed here

 

These initiatives are very important to help combat the issues of elder abuse and addressing ageism in our society.

 

6. What Next? Navigating Later Life Transitions

 

WEL attended the Book Launch at Royal St. Georges Golf Club on February 6th, 2013. All authors attended with dignitaries, including MPP, Donna Cansfield, who spoke on the importance of raising the awareness of ageism and abuse, including poverty of the older adult in our community.

 

Information on this book can be found on the books website. Pictures from the event are expected to be posted there in the near future: navigatinglaterlife.com

 

7. University of Toronto Faculty of Law, February 12, 2013

 

Kimberly Whaley and Ben Arkin met students at career services this week, to answer questions on developing a Law Career in Estates.

 

 

BOOK REVIEW

 

National Academy of Elder Law Attorneys - Volume 24 - Issue 6- December 2012/January 2013, NAELA News Magazine

 

In the National Academy of Elder Law Attorneys - Volume 24 - Issue 6- December 2012/January 2013. NAELA News Magazine, was an article entitled: "Bury the Top 10 Myths About the Dying Process". This article was by Tani Bahti, RN, CT, CHPN, and it appeared in the NAELA News Magazine.[1]  The article is interesting from the perspective of current debates in our media, and before our courts about 'end-of-life decision making and health care'. It is an interesting article more from a human perspective, than from a legal or controversial and ethical perspective. The author, Bahti, states that it is critical that this information about the dying process be provided compassionately and thoroughly, before facing a potentially terminal illness. An understanding of the dying process enables people to make decisions which are informed decisions as opposed to decisions based on fear, lack of information and misinformation.

 

The article by Bahti, refers to her article first published in the NAELA Health Care Section Newsletter. In this article, Bahti addresses the top 10 myths about the dying process as elicited from her book, entitled: "Dying to Know - Straight Talk about Death & Dying"

 

Click to link to Bahti's website and in particular, her book, Dying to Know

 

On the website, the book is described as being written directly to the person who is facing the end of his/her life. Discussions include physical changes, family dynamics, decision-making, communication, closure and the mystery of dying.

 

In the Top 10 Myths About the Dying Process, in the NAELA Newsletter, Bathi discusses pain and medication; complications due to forced feeding; natural dehydration and the discomfort associated with provision of artificial fluids; use of technology in prolonging death; the diminishing of energy through illness; proper management of medication; narcotic medications and their impact on the body and death; consciousness while in a coma; and the impact on loved ones, while awaiting death.  Interestingly, Bahti speaks of understanding and honouring the dying process which will in turn, promote better decision-making.

 

The resources on Bahti's website are resources which would benefit many persons facing end of life decision making.



[1] NAELA News Magazine, pages 28-29

 

 

 

LAW REVIEW: CASES AND OTHER LEGAL REVIEWS

 

a.  The Succession Law Reform Act, R.S.O. 1990, c.S.26, Dependant's Support - Ontario: Kalman v. Pick 
[1]

 

The case can be accessed at: http://canlii.ca/t/fvp30

 

The 75 year-old Applicant sought, inter alia, Dependant's support from the Estate of her common-law partner of 23 years. The Respondent Estate Trustees were the deceased's children and the primary beneficiaries of his Estate valued at $1.8 million. The Applicant had been completely financially dependent on the deceased for all of their living, leisure and entertainment expenses. They travelled frequently and held season tickets to various cultural events.

 

The Respondents had conceded the Applicant's entitlement to relief under Part V of the SLRA but no agreement could be reached as to the quantum. They had also agreed to cover the Applicant's monthly condo fees, but could not agree to increase that amount to meet her living expenses - in part because they disputed the quantum of those expenses.

 

After a year of costly negotiations the parties made their first appearance before Justice Chapnik. On consent the Applicant received a monthly payment of "interim interim support", a non-dissipation order in respect of the Estate, and a return date in three months' time.

 

The only issue before Justice C. Brown on that January 2012 return date was the Applicant's request that the Estate provide her with a lump-sum interim support payment to cover her legal fees and disbursements. This type of funding Order has not previously been reported as granted in SLRA claims.

 

The Applicant submitted that she could not meet her monthly living expenses, despite her monthly interim support on top of her fixed monthly income. She submitted that she had depleted her modest savings, had to obtain a line of credit, and was incurring ongoing legal fees, all in the pursuit of her claim which the Respondents agreed had prima facie merit.

 

Justice Brown accepted the Applicant's evidence of financial need and legal fees incurred and observed that in the absence of adequate interim support, "...the Applicant's ability to pursue her meritorious claim would be prejudiced or would depend on the generosity of her counsel."[2]

 

In Ordering the Estate to pay the Applicant a lump-sum interim support of $60,000 for her legal costs and disbursements, and expert's retainer, Justice Brown cited the provision of such funding orders in matrimonial, commercial, and constitutional matters and applied the SCC's criteria for such exercises of equitable jurisdiction as to costs.[3] Justice Brown also relied on interim costs awards granted in the context of estates and trusts matters.[4]

 

The costs of the application have yet to be reported.

 

This case represents much needed precedent in providing a means for dependants to fund a viable claim against an estate where having met the statutory test under the legislation - the SLRA - and has not been provided adequate or proper support by the Deceased person. Often such is the case that the dependant is prejudiced in prosecuting a meritorious claim due to unaffordability.

 

b. Juzumas v. Baron [5]  A case of predatory marriage and financial abuse of a vulnerable, yet capable older adult

 

 This case can be accessed at:  http://canlii.ca/t/fvfc2

 

The decision of Juzumas v. Baron provides a tool kit for practitioners seeking to remedy a wrong created by a perpetrator of elder abuse. The case involves a scenario not unlike the stories many of us have come across involving an older adult who comes into contact with an individual who, under the guise of "caretaking", moves to fulfill more of the latter part of that verb. The result: an older person is left in a more vulnerable position than that in which they were found.

 

This recent decision of the Ontario Superior Court of Justice involves a man, the plaintiff, who was 89 years old at the time the reported events took place, and of Lithuanian descent, with limited English skills. His neighbor described him as having been a mostly independent widow prior to meeting the defendant, a woman of 65 years.[6] Once a "lovely and cheerful" gentleman, the plaintiff was later described as being downcast and "downtrodden.[7] The defendant's infiltration in the plaintiff's life was credited for bringing about this transformation. The financial exploitation, breach of trust, precipitation of fear, are all hallmarks of a predator.

 

The defendant "befriended" the respondent in 2006. She visited him at his home, suggested that she provide assistance with housekeeping, and eventually increased her visits to 2-3 times a week. She did this despite the plaintiff's initial reluctance.[8] The defendant was aware that the plaintiff lived in fear that he would be forced to move away from his home into a facility. She offered to provide him with services to ensure that he would not need to move to a nursing home. He provided her with a monthly salary in exchange.[9]

 

The defendant ultimately convinced the plaintiff to marry her under the guise that she would thereby be eligible for a widow's pension following his death, and for no other reason related to his money or property.[10] She promised to live in the home after they were married and to take better care of him. Most importantly, she undertook not to send him to a nursing home as he so feared.[11] The plaintiff agreed.

 

The defendant however, testified that the plaintiff had suggested that they marry on the basis of their mutual feelings of affection, romance, and sexual interest, Justice Lang found otherwise.[12] The defendant, who had been married approximately 6-8 times (she could not remember the exact number), had previous "caretaking" experience: prior and concurrent to meeting the plaintiff, the defendant had been caring for an older man who lived in her building. She had expected to inherit something from this man in addition to the pay she received for her services and was left feeling sour as she had not. Justice Lang considered this evidence as an indicator that the defendant was sophisticated in her knowledge of testamentary dispositions, and that she knew that an expectation of being named as a beneficiary to someone's Will on the basis that she provided that person with care is unenforceable.[13]

 

The day before their wedding, the soon-to-be newlyweds visited a lawyer who executed a Will in contemplation of their marriage. In spite of the obvious age gap and impending marriage, the lawyer did not discuss the value of the plaintiff's house ($600,000) or the possibility of a marriage contract. Interestingly, the lawyer did not meet with the plaintiff without the defendant being present.[14]

 

After the wedding ceremony, which took place at the defendant's apartment, she dropped him off at a subway stop so that he would take public transit home alone.[15] The defendant continued to care for the plaintiff several hours a week and to receive a monthly sum of money from him.

 

Despite the defendant's promise that she would provide better care to the plaintiff if they married, testimonies from the plaintiff's tenant and neighbor, which were both found to be credible, attested that the relationship degenerated progressively. The tenant described the defendant, who had introduced herself as the plaintiff's niece, as "'abusive', 'controlling' and 'domineering'".[16]

 

With the help of a plan devised over the course of the defendant's consultation with the lawyer who had drafted the plaintiff's Will made in contemplation of marriage, the defendant's son drafted an agreement which transferred the plaintiff's home to himself, not his mother in order to financially protect her. The "agreement" acknowledged that the plaintiff did not want to be admitted to a nursing home. Justice Lang found that even if it had been shown to him, the plaintiff's English skills would not have sufficed to enable him to understand the terms of the agreement, and that the agreement did not make it clear that it entailed a transfer of the plaintiff's home.[17]

 

The plaintiff, the defendant and her son attended the lawyer's office in order to sign an agreement respecting the transfer of the plaintiff's property. Justice Lang found that the lawyer was aware of the plaintiff's limited English skills; that overall his evidence indicated that it had not been explained to the client with sufficient discussion, or understanding the consequences of the transfer of property; and moreover, that he was in the court's words "virtually eviscerating the Will he had executed only one month earlier...";  that he did not meet with the plaintiff alone; and only met with the parties for a brief time.[18] Additionally, Justice Lang found that the agreement signed by the plaintiff was fundamentally different from the agreement he had been shown by the defendant and her son at the plaintiff's home.[19]

 

Perhaps most importantly, Justice Lang found that the lawyer did not appreciate the power imbalance between the parties. In fact, it seems the lawyer was under the impression that the defendant, and not the plaintiff, was the vulnerable party.[20]

 

The lawyer's notes likely read as a whole, but unknown on the reasons alone, indicated that the plaintiff was "cooperative" during the meeting. Justice Lang interpreted the lawyer's use of this word as indicating that the plaintiff was "acceding to someone else's direction," and not a willful and active participant to the transaction.[21] In addition, Justice Lang found that the plaintiff had been under the influence of emotional exhaustion or over-medication at the time the meeting took place. The judge found, based on testimonial evidence that this may have been because the defendant may have been drugging his food as suspected by the plaintiff.[22]

 

Sometime after the meeting, the plaintiff's neighbor explained the lawyer's reporting letter to him, and its effect in respect of his property. With his neighbor's assistance, the plaintiff attempted to reverse the transfer by visiting the lawyer at his office on three separate occasions. Interestingly, when he would visit, a few minutes after his arrival, his "wife" would appear. The lawyer explained to the plaintiff that the transfer could not be reversed because it was "in the computer."[23]

 

When the plaintiff was injured with some severity, he was taken to the hospital. The hospital informed of the transfer of his house and directions regarding the nursing home, instead, sent him home with two days a week of homecare.[24]

 

Notably, although the plaintiff initially sought a declaration that his marriage to the defendant was a nullity and void ab initio, he did not pursue this claim, instead seeking a divorce/dissolution of the marriage, which was granted in its place.

 

In considering the transfer of property, Justice Lang applied and cited McCamus' Law of Contracts, which outlines a "cluster of remedies" that may be used "where a stronger party takes advantage of a weaker party in the course of inducing the weaker party's consent to an agreement."[25] Justice Lang outlined the applicable legal doctrines of undue influence and unconscionability, stating: "if any of these doctrines applies, the weaker party has the option of rescinding the agreement."[26]

  

Undue Influence

 

Justice Lang found that a presumption of undue influence existed between the parties in this case as the relationship in question involved an older person and his caretaker. The relationship was clearly not one of equals. In such a case, the court noted that the defendant must rebut that evidence by showing that the transaction in question was an exercise of independent free-will, which can be demonstrated by evidence of independent legal advice or some other opportunity given to the vulnerable party which allows him or her to provide "a fully-informed and considered consent to the proposed transaction."[27]

 

As for the doctrine of unconscionability, Justice Lang stated that the doctrine "gives a court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power."[28] The onus is on the defendant to establish the fairness of the transaction. These presumptions were not rebutted by the defendant in this case.

 

Quantum Meruit

 

In addressing the defendant's claim of quantum meruit for services rendered, Justice Lang found that the period during which services were rendered could be distinguished as two categories: pre-marriage and post-marriage.

 

During the pre-marriage period, the defendant undertook to care for the plaintiff without an expectation or promise of remuneration, and persuaded the plaintiff to compensate her with a monthly income. Justice Lang found that no additional remuneration could be claimed for that period.

 

During the post-marriage period, Justice Lang found that the defendant had an expectation that she would be remunerated by the plaintiff, and that the plaintiff had agreed to do so.[29] For this period, Justice Lang calculated the value of the services rendered by the defendant by multiplying the number of hours she worked each week by an approximation of minimum wage at that time. She adjusted her calculation to account for occasional decreases in hours worked, as well as the period of two months during which she found the defendant had been solely concerned with her own objectives, such that she could not have been caring for the plaintiff.[30] Justice Lang then subtracted the amount of money that had been paid to the defendant already by way of a monthly salary, and found that only a minimal sum remained.

 

Justice Lang then reviewed the equitable principle that restitutionary relief allows a court to "refuse full restitution or to relieve [a party] from full liability where to refrain from doing so would, in all the circumstances, be inequitable."[31] In considering this principle, Justice Lang found that the defendant had "unclean hands" and that "the magnitude of her reprehensible behaviour is such that it taints the entire relationship."[32] As a result, Justice Lang found that the defendant was not entitled to any amount pursuant to her quantum meruit claim.

 

Substantial costs were awarded in favour of the older adult plaintiff.[33]

 

This case provides helpful guidance in the area of elder abuse, as it demonstrates the tools of contract law and equity afforded to the court, in order to remedy a wrong suffered in the context of financial abuse. This case provides what is, in cases of financial abuse, a rarity: a fitting ending. In this case, it is not a family member or acquaintance who brought the case before the court after the vulnerable adult's assets had already been depleted, but rather, the older adult himself who, with the help of his neighbor, was able to seek justice and reverse some of the defendant's wrongdoing.

 

It is not every case of elder abuse that involves an older adult who is able to, or capable of being present during court proceedings to represent the facts as he or she recalls them. In addition to its review of the legal concepts that are available to counsel seeking to remedy the wrongs associated with predatory marriages, this case demonstrates the usefulness of presenting the testimony of an older adult when it is possible and appropriate.

 

A Notice of Appeal has been filed in this matter, the status of same currently unknown.

 

Some interesting on-line blog postings concerning the evidence of neighbours/tenants supporting Mr. Kazys Juzumas including affidavit evidence, can be accessed at:

 

http://www.thethoughtvox.com/Court%20Files/

 

The evidence in the reported decision reveals that the perpetrator in this case had been married between 6-8 times previously.  Though again, it is important to note that Mr. Juzumas was capable cognitively to have married, indeed, it appears from the court's analysis that he was influenced through improper motive facilitated by his vulnerability, perhaps age related, although more importantly, on account of fear, associated with being able to stay living in his own home.  This is a major fear of many older adults and a common cause of successful influence exercised to overbear and manipulate a vulnerable, often dependent older adult.  Societal awareness of these predatory situations is crucial such that we are all live to such issues and can step in to help protect our largest population - that of the Older Adult.

 

Societal and demographic changes in the make-up of  our population tells us that our family structure is very complex, with families fractured, not just as a result of a complicated family units and relationships, but also attributable to distance, in other words, family members do not necessarily reside in the same community, town, city, province, or even country.

 

As such, the older adult, irrespective of age, cognitive impairment, vulnerability, dependancy, may simply be lonely and ripe for the picking as a victim for abuse of this type.

 

Solicitors must be attuned to this type of situation and be sure the retainer includes a review of principles associated with suspicious circumstances, undue influence, an investigation of age, illness, assets, family relationships and independent legal advice - especially where joint retainers - ensure there is no conflict of interest present.

 

Our society as a whole has a duty to protect the vulnerable; knowledge and awareness is the first of many necessary steps to achieve this goal.

 

c. THE RULES OF CIVIL PROCEDURE, R.R.O. 1990

            

Status Hearings under Rule 48.14 have been amended

  • Rule 48.14 incorporates or adopts former Rule 78 and should ordinarily proceed in writing
  • That said, if a consent proceeding and timetable cannot be agreed, the Plaintiff bears the  onus of demonstrating cause to prevent dismissal for delay
  • In Amirrahmani v. Wal-Mart Canada Inc., 2011, ONSC 6608 (Master), Master Macleod summarized, rather helpfully, the procedure respecting R. 14.14 at para 29, and how to approach the deadlines as follows:

"The most common responses to a Rule 48.14 deadline are the following:


a. A plaintiff may not be able to set the action down by the deadline for legitimate reasons. In that case the plaintiff should bring a motion seeking to extend the time rather than waiting for a status notice.[34] Of course a defendant might choose to oppose such a motion. Presumably the plaintiff as the moving party would have to demonstrate that more time was legitimately required and that the plaintiff would not be prejudiced. In my view this is the approach that should be encouraged and one would anticipate more sympathy for a plaintiff that moves proactively in compliance with the rules than one who waits for a status notice.

b. A plaintiff served with a status notice will occasionally bring a motion to set aside the status notice and to extend the time to a new deadline. In that instance there will be a new status notice when the new deadline expires. Frequently such motions are made in writing and on consent. Presumably if such a motion was opposed, it would be necessary to persuade the court that more time is required and the extension will not prejudice the defendant. A relevant consideration might also be the reason for not seeking an earlier extension of time.

c. If a plaintiff does not act on a status notice or does not receive the notice and there is an automatic dismissal, the plaintiff may move to set aside the registrar's dismissal order. Considerable jurisprudence has issued from the Court of Appeal concerning the test for setting aside a registrar's order. This centres around the "Reid factors". In addition to justifying delay and dealing with prejudice, the plaintiff must also explain the default, show that it moved promptly and deal with prejudice arising from finality; that is reliance upon the dismissal and the passage of time after the order was made.
[35]

d. A plaintiff in receipt of a status notice may move to extend the 90 days for requesting a status hearing or facing automatic dismissal. Presumably this might be done due to inability to obtain instructions or because there is an upcoming discovery or mediation date or the potential for a motion. This leaves open the possibility of having to show cause at a status hearing or being subject to automatic dismissal if a status hearing is not requested.


e. A plaintiff served with a status notice may request a status hearing, attempt to negotiate a timetable and then find the defendant will be requiring the plaintiff to actually show cause and will be seeking dismissal of the action. As was the case in this instance, the court should then permit filing of affidavit evidence. The plaintiff must show an explanation for the delay and absence of prejudice. An affidavit will be necessary. The defendant need not prove prejudice but has the option to do so by filing an affidavit.

 

The test applied on a status hearing is two-part.  See Khan v. Sun Life Assurance Co. of Canada, 2011 ONSC 455 (Master)[36] at para 1:

 

"At the status hearing, which was originally requested by the appellant, the appellant bore the burden of demonstrating that there was an acceptable explanation for the involved litigation delay;  and that, if the action was allowed to proceed, the respondent would suffer no non-compensable prejudice."

 

The court has wide discretion when considering principles of discouraging delay as in the public interest and permitting actions to be determined on their merits.

 

d. BUCCILLI V. PILLITTERI

            

This case can be accessed at: http://canlii.ca/t/fvqkh

 

The case of Buccilli v. Pillitteri [37]was reviewed on our blog site earlier this month. Click here to view.

  

On January 14, 2013, Justice Newbould released the costs decision by way of additional reasons.

 

The parties could not agree on costs.  The defendant argued an assessment should be ordered since there were no dockets kept, nor invoices supporting disbursements claimed.

 

Newbould J., opined that the rules provide that the court should fix costs except in an exceptional case. In fixing costs, Rule 57.01(7) provides the court shall devise and adopt the:

  • Simpest;
  • Least expensive; and
  • Most expeditious process to fix costs.

Justice Newbould did not find exceptional circumstances to exist warranting assessment pursuant to A.C.J.O. in Murano v. Bank of Montreal, (1998), 41, O.R. (3d) 222 (C.A.)[38].

 

The court declined to direct an assessment. The defendants were directed to request the dockets and the parties to make written submissions. Importantly, the defendants were warned that fixing costs is not an item by item review, distinct from assessment.

 

 e. Severance of Joint Tenancy - Park v Park [39] 

 

This case can be accessed at: http://canlii.ca/t/fvp3t

 

So often when consulted by a surviving spouse in the context of an estate claim, it is learned that the Deceased spouse severed the joint tenancy on the home previously held by the spouses jointly with rights of survivorship.

 

Often the spouse is surprised to learn that the joint tenancy could be severed without the spouse's knowledge or consent.  The severance renders title to be conveyed as tenants-in-common.

 

In Park v Park, the Parks were married in 1950 and had 5 children.

 

Two weeks prior to the death, Mr. Park severed the joint tenancy, leaving in his Will his share as tenants-in-common to their one child alone.

 

The issues raised included whether the transfer/severance should be set aside on the basis that he lacked capacity and also that he had been unduly influenced by his one child.

 

Other issues raised included whether rent should be paid by the one child, and whether another child held the interest in trust for his parents.

 

Mr. Park prior to his death, had commenced proceedings to have his wife, who filed for divorce, declared incapable.

 

Mr. Park was 83 years of age at death.

 

The one child in question drove Mr. Park to the lawyer, and remained in the room.

 

Dr. Shulman, an expert geriatric psychiatrist, provided opinion evidence on testamentary capacity in determining that the severance was a testamentary act.

 

Dr. Shulman opined that Mr. Park had capacity and that no undue influence affected the testamentary disposition.

 

Importantly, Dr. Shulman made a point of noting that dementia alone does not deprive a person of capacity.

 

The court found in all of the circumstances that Mr. Park wished to benefit the one child and was capable of executing the transfer and severing the joint tenancy.

 

The court dismissed the claim for rent on the basis the child in question was an owner of the home.

 

The court also found no evidence that the other child claimant had any trust interest held for his parents and therefore dismissed the claim.

 

The costs disposition is unknown.



[1] Kalman v. Pick et al., 2013 ONSC 304 (CanLII) ("Kalman").

[2] Kalman, supra note 73, para. 11

[3] British Columbia (Minister of Forests) v Okanagan Indian Band [2003] 3 SCR 371, 2003 SCC 71.

[4] Kraus v. Valentini Estate, 1993 CarswellOnt 2128, 1993 OJ No 3276 (Ont Gen Div); Zhao v Ismail Estate (trustee of), 2006 CarswellOnt 8411, 29 ETR (3d) 315; Perkovic v Marion Estate, 2008 CarswellOnt 5931 (SCJ). 

[5] 2012 ONSC 7220 (CanLII).

[6] Ibid. at para 1.

[7] Ibid. at paras 39 and 56.

[8] Ibid. at para 25.

[9] Ibid. at para 28.

[10] Ibid. at paras 26-28.

[11] Ibid. at para 28.

[12] Ibid. at para 27.

[13] Ibid. at para 24.

[14] Ibid. at para 30.

[15] Ibid. at para 31.

[16] Ibid. at para 54.

[17] Ibid. at paras 68-69.

[18] Ibid. at paras 79-84.

[19] Ibid. at para 84.

[20] Ibid. at para 88.

[21] Ibid. at para 91.

[22] Ibid. at paras 63 and 92.

[23] Ibid. at para 97.

[24] Ibid. at para 104.

[25] Ibid. at para. 8 citing John McCamus, The Law of Contracts (2d) (Toronto: Irwin Law, 2012) at 378.

[26] Ibid. at para 8.

[27] Ibid. at para 11.

[28] Ibid. at para 13.

[29] Ibid. at para 129.

[30] Ibid. at para 128.

[31] Ibid. at para 141 citing International Corona Resources Ltd. v. Lac Minerals Ltd.(1987), 44 DLR (4th) 592 (CA) at 661.

[32] Ibid. at para 142.

[33] 2012 ONSC 7332 (CanLII).

[34] If the action is case managed, such an order may also be obtained as a component of a court ordered timetable

[35] K. Laboratories v. Highland Export Inc., 2010 CarswellOnt 5264, 2010 ONSC 4032

[36] Khan v Sunlife Assurance Company of Canada, 2011 ONCA 650 (CanLII)

[37] Buccilli v. Pillitteri, 2013 ONSC 328 (CanLII), para 1-7

[38] Murano v Bank of Montreal, 1998 CanLII 5633 (ON CA)

[39] Park v Park, 2013 ONSC 431 (CanLII)

 

 

 

 

UPCOMING PROGRAMS

 

STEP (Society of Trust and Estate Practitioners) Program

February 13, 2013
US Tax Issues with Life Insurance Policies
Osgoode Hall Law School, The Donald Lamont Centre
Info: http://www.step.ca/programs.asp?b=Toronto

CBA Elder Law Section Program, Toronto
Substitute Decision-Making and Elder Law (National Elder Law Section)
April 15-16, 2013
Chair: Kimberly Whaley
STEP (Society of Trust and Estate Practitioners) Program
April 16, 2013
RCA's, IPP's and Health and Wealth Trusts
Osgoode Hall Law School, The Donald Lamont Centre 
LSUC Practice Gems Series
April 24, 2013
Passing of Accounts: The recommended Best Practices for Passing of Accounts
Speaker: Kimberly Whaley
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101

LSUC Six-Minute Lawyer
April 24, 2013
Emerging Elder Law Issues
Speaker: Kimberly Whaley
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101

LSUC Six-Minute Lawyer
April 24, 2013
Digital Assets
Speaker: Benjamin D. Arkin
Info: http://ecom.lsuc.on.ca/cpd/product.jsp?id=CLE13-0041101 
 
CCLA Solicitors Conference Montebello
May 3-4, 2013
Speaker: Kimberly Whaley, Predatory Marriages and Financial Abuse and Misuse of Authority Pursuant to POA's
 
STEP (Society of Trust and Estate Practitioners) Program
May 8, 2013
Make Your Golden Years Golden...Planning For and Advising on Personal Care Powers of Attorney and Advance Directives
Osgoode Hall Law School, The Donald Lamont Centre
Chair: Kimberly Whaley
Speaker: Mark Handelman 
 
B'Nai Brith, When Does Estate Planning Cross the Line and Become a Fraudulent Preference or Conveyance?
June 4, 2013
Speaker: Kimberly Whaley
 
Carswell Webcast, Predatory Marriages
Kimberly Whaley co-presenting with Professor Albert Oosterhoff
June 4, 2013
 
LSUC 2nd Annual Civil Litigation Summit
June 11, 2013
Mini Law School - Update in Estate Litigation
Speaker: Kimberly Whaley
 
CBA, National Conference, Saskatoon, Saskatchewan
August 18-20, 2013
Speaker: Kimberly Whaley, Roundtable discussion

LSUC, The Administration of Estates 2013
September 19, 2013
Chair, Kimberly Whaley  

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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

 

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Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
C.S., TEP.
Principal
(416) 355-3250
 
Mark Handelman
Firm Counsel
(416) 355-3254

Ameena Sultan
Associate
(416) 355-3258

 

Benjamin D. Arkin
Associate
(416) 355-3264 
 
JaŽl Marques de Souza

Associate

(416) 355-3266


Heather B. Hogan
Associate
(416) 355-3262
 
Deborah Stade
Office Manager
(416) 355-3252
 
Bibi Minoo
Estates Clerk
(416) 355-3251
 
Eden Kaill Fenrick   
Legal Assistant
(416) 355-3255

 

Megan Bradt   

Paralegal

(416) 355-3253

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